UPDATED INFORMATION FOR CHAPTER 61:
VOLUNTARY SECTOR LEGAL HANDBOOK
This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.
These websites for each chapter update
the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.
To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking
. It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.
The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.
Chapter 61
DISPUTE RESOLUTION AND LITIGATION
NATIONAL MEDIATION HELPLINE
Added 6/8/06. This information updates s.61.2.1 in The Voluntary Sector Legal Handbook 2nd edition.
The National Mediation Helpline, run by the Department for Constitutional Affairs and the Civil Mediation Council, can help individuals and organisations use mediation as an alternative to going to court. The helpline does not cover family or community/neighbour disputes and does not cover Scotland, but can put enquirers in touch with other relevant bodies.
The National Mediation Helpline can be reached via www.nationalmediationhelpline.com or on 0845 60 30 809.
THE COMPACT
Updated 17/9/03. This information adds to s.61.2.1 in The Voluntary Sector Legal Handbook 2nd edition.
NCVO's Compact advocacy project provides a list of all government undertakings from the Compact and related codes of practice, and can help organisations use the Compact to resolve disputes with government departments and agencies. Details are at www.ncvo-vol.org.uk/compactadvocacy.
The Centre for Dispute Resolution announced on 19 March 2003 that it is operating, on behalf of the Home Office Active Community Unit, a mediation scheme to resolve conflicts between voluntary organisations and government departments, their executive offices, and government offices for the regions. The scheme covers only conflicts where one party feels that the Compact on government/voluntary sector relationships has been infringed. Details are available from CEDR Solve on 020-7536 6060 or at www.cedrsolve.com/index.php?location=/services/schemes/compact.htm.
"WITHOUT PREJUDICE" PRIVILEGE
Added 21/7/07. This information adds to s.33.2 and updates s.61.4.1.4 in The Voluntary Sector Legal Handbook 2nd edition. It is reprinted from the Russell-Cooke Solicitors employment update 27/6/07. To sign up for Russell-Cooke updates go to www.russell-cooke.co.uk/serv_c&o_charities.htm.
Communications between parties that are made in a genuine attempt to settle a dispute will generally be "without prejudice". This means that the communications will not be admissible as evidence in litigation between the parties. The policy behind this is to encourage parties to settle disputes. However, this has to be balanced against a party's right to put its case as best it can if litigation commences.
In a recent Court of Appeal case, the court considered when communications attract the "without prejudice" cloak and how close these communications have to be to the commencement of any such litigation.
In this case, the parties had a dispute over the terms of employment and discussions took place regarding the terms and what they understood to be the terms between March and October 2005. In October, the employer informed the employee that it intended to dismiss him at the end of the year but the parties continued with discussions with the intention of seeking to resolve the matter. The discussions broke down, and on 13 December the employee threatened legal proceedings if matters were not resolved swiftly. On 20 December the employee was given notice that his employment would terminate on 31 December 2005.
The Court of Appeal held that the critical factor was whether, in the course of negotiations, the parties contemplated or might reasonably have contemplated litigation if they could not achieve a settlement. Therefore, it was the subject matter of the dispute, rather than how long before the commencement of litigation, that was the important factor, and whether the discussions were a genuine attempt to settle a dispute. In this case the discussions that took place between October [when the employer had made clear it intended to dismiss] and December 2005 had been "without prejudice" and where therefore privileged, and could not be used as evidence.
Framlington Group Ltd & Axa Framlington Group Ltd v Barnetson is at www.bailii.org/ew/cases/EWCA/Civ/2007/502.html.>
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